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High Court Of Madhya Pradesh
G. P. Singh, C. J. and U. N. Bhachawat, J.
JIWANLAL AGRAWAL - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 99 Of 1981
Decided On : 03/13/1981
Section 16 (1) in clear terms enacts that the committee constituted "shall be deemed to be a Council for the purpose of this Act". The legal fiction created by these words is wide enough to make a committee constituted under section 16 also a Council for purposes of section 36 subject to the special provisions made in section 16. The term of a committee under section 16 is two years as provided in sub section (2). It can also be extended by one year more under the proviso. The provision in section 36 that the term of the council will be four years will thus have no application for a committee deemed to be a council under section 16.
We are conscious that the better course for the legislature would have been to make a similar provision as made in section 36 (2) in section 16 also. But the omission of the Legislature in this matter does not preclude us in reaching a reasonable result in the construction of the deeming provisions contained in section 16 (1) and section 36 (2) and by applying the latter with such modification as the context of section 16 requires. [Para 7
Unless we construe the deeming provision contained in section 16 (1) to include section 36 (2) with a modification relating to the term of the committee deemed to be a council, an absurd result would follow. If within the term of two years or when the term is extended within the extended term of one year of a committee under section 16 no elected council is constituted, there would be no one to look after the municipal administration and to exercise the powers of the council unless section 36 (2) is by implication brought into play conferring power on the State Government to appoint an Administrator. [Para 8
(2) Municipalities Act, 1961 (MP) - Ss. 328, 16 (1) and S. 36 (2)-council appointed under section 16 (1)-term expired-Government may appoint an Administrator-lacuna in law has to be filled in.
A Municipal Committee was constituted under section 16 of the Act. After the expiry of the term the Government appointed an Administrator. The construction was that section 36 (2) being not applicable, power under section 328 could not be exercised.
Held: In such cases unless the State Government is able to draw upon the power contained in section 328 of appointing an Administrator with the help of sections 16 (1) and 36 (2), a lacuna will result leaving no one to exercise the power of the council in a local area declared to be a municipality. Such a result could not have been intended by the legislature. It is also a well recognised principle that effort should be made not to create a casus-omissus by construction. [Para 9
(3) Municipalities Act, 1961 (MP) - S. 16 (2) - Government not bound to extend the period.
The power to extend the term under the proviso to section 15 (2) is discretionary and the Government cannot be compelled to exercise it. [Para 9
( 1 ) BIRSINGHPUR and Sabhapur of tahsil Raghurainagar, district Satna, were previously, head-quarter of Gram Panrhayats constituted under the provisions of the Madhya Pradesh Panchayats Act. 1962. The State Government de established the Gram Panchayats and by notification dated 5th January, 1979 declared the local area comprised in Birsinghpur, Sabhapur and other villages to be a municipality from 26th January, 1979. This notification was issued under section 5 of the Madhya Pradesh Municipalities Act, 1961. By another notification issued on the same date, the State Government constituted a committee under Section 16 consisting of 15 persons to function as a council for the purposes of the Act. This notification was issued under Section 16 read with Section 7 (b) of the Act. In the committee so constituted the petitioner was nominated as Junior Vice-President, In April, 1980 there was some proposal to supersede the committee and to constitute another committee of 15 other persons. That move was not pursued. On 16th January, 1981. the Government issued a notification, which is Document No. 5, by which the Block Development officer, Maihgawan, was appointed Administrator of the Municipality as the period of two years of the council expired on 25th January, 1981. It is this notification which has been challenged in this petition under Article 226 of the constitution.
( 2 ) THE argument of the learned counsel for the petitioner is that there is no provision in the Act enabling the Government to appoint an Administrator when the term of a committee constituted under Section 16 expires. Learned counsel submits that the Government should have extended the terms of the council by one year under the proviso to Section 16 (2 ). The learned Government advocate in reply submits that the Government has power to appoint an administrator after the expiry of the period of the committee under Sections 16, 36 and 328 read together He also submits that it is not obligatory on the government to extend the term of the committee appointed under Section 16.
( 3 ) TO appreciate the rival contentions it is first necessary to have a look at the relevant provisions of the Act. A notification declaring a local area to be a municipality is issued under Section 5. If the local area declared to be a municipality was previously a town area or a Panchayat, the government is required to constitute a committee in accordance with the provisions of Section 16 to exercise the power of the council pending its constitution. This is provided in Section 7 (b) of the Act. Section 16 reads as follows:
"16. Exercise of powers of Council pending its constitution.-- (1)When an area is declared to be a Municipality for the first time under this Act, the State Government shall, by notification, constitute a committee consisting of a President, two Vice-Presidents and such number of members as it may deem fit and such a Committee shall be deemed to be a Council for the purposes of this Act: provided that no person shall be ap pointed as President or Vice-President or Member of such a Committee who is ineligible to hold such office in the council under this Act. (2) A Committee constituted under Sub-section (1) shall continue to function until a Council is constituted under this Act or until the expiration of two years from the date on which notification under sub-section (1) is published in the Gazette, whichever is earlier; (3) The State Government may, by notification, at any time remove the President, Vice-President or a member of the Committee and appoint any other person eligible to be so appointed in his place. (4) Notwithstanding anything contained in Sub-section (1), the provisions of Sections 41, 47 and 48 shall apply to the Committee. "
( 4 ) A Council is continued by election and selection of councillors as provided in section 19 and other allied provisions. The term of an elected Council is four years from the date of its first meeting. These ter
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